2016 (10) TMI 229 - AT - Central Excise

Refund claim - unjust enrichment - duty on the element of equalized freight from the factory to the depots of the respondent - equalised freight not includable in the assessable value - Held that - once the Tribunal has held that equalized freight amount needs to be excluded from the assessable value for discharge of duty liability, nothing survives in the matter. The first appellate authority has held that the price remained the same before and after the clearances in respect of dutiability of the equalized freight, hence refund is admissible. Appeal allowed - decided in favor of Revenue.

Summary

Issues involved:
- Refund claims filed by the appellant for the period April 2000 to July 2002 based on previous orders.
- Rejection of refund claims by the adjudicating authority on the grounds of limitation and unjust enrichment.
- Appeal allowed by the first appellate authority based on Chartered Accountant's certificates and affidavit.
- Contestation by Revenue regarding the order-in-appeal dated 5.8.2003.
- Disagreement on the passing of duty to others based on Chartered Accountant's certificates.
- Sustainability of the impugned order due to various reasons.

Analysis:

The judgment revolves around the refund claims filed by the appellant for a specific period following previous orders favoring the respondent. The issue primarily focused on whether duty was payable on equalized freight and if the appellant was eligible for refunds. The adjudicating authority had rejected the refund claims citing limitation and unjust enrichment, but the first appellate authority allowed the appeals based on Chartered Accountant's certificates and an affidavit indicating non-passing of duty.

The Revenue contested the order-in-appeal dated 5.8.2003, arguing that the prices were not the same and challenging the reliance on Chartered Accountant's certificates. They referred to a Supreme Court judgment to support their position. On the contrary, the appellant emphasized the clarity of the certificates showing non-passing of duty. The Tribunal found the impugned order unsustainable for multiple reasons.

The Tribunal noted that the order-in-appeal dated 5.8.2003 was set aside in a subsequent decision, rendering the refund claims irrelevant. The judgment in the Allied Photographics case was deemed inapplicable as the selling price alone was not conclusive evidence of non-passing of duty. The Tribunal concluded that the impugned order was unsustainable due to the conflicting views on duty passing and upheld the appeals filed by the Revenue.